Patent and Latent Defects and the 'Voetstoots' Clause

Private Property South Africa
Property Power

When purchasing property, it is vital that you inspect the property you intend to buy thoroughly. Only in certain instances will the buyer be protected against severe defects discovered after the transfer on a property has gone through.

The law will attempt to determine whether the defect is patent or latent; and if latent, whether the seller deliberately concealed it with the intent to defraud the buyer, and on these grounds make a ruling as to who is responsible for the cost of repair.

Check the physical aspect as well as the local authority approval of outbuildings, additions and alterations. By law, the absence of statutory permissions (approved building or alteration plans, etc.) are ‘defects’ to which the Voetstoots Clause applies.

A patent defect is clearly visible upon reasonable inspection, like a crack in a wall or window, and it should be stated in the offer to purchase, who will be responsible for fixing (or replacing) the defect. A latent defect is not so easily picked up on superficial inspection, for example a faulty geyser, a damp area concealed behind furniture or fresh paint or a leaking roof.

The buyer has no recourse for ‘patent’ defects, which are visible or obvious without expert inspection - it is up to the buyer to look for them, and to decide whether or not to proceed with the purchase. The seller is responsible for all latent defects in the property for three years from the date of sale of the property. It is for this reason that a seller would stipulate that the property is for sale 'as is' ('Voetstoots'). It covers the seller against all defects, including "latent" (non-obvious or hidden) defects, although he is still responsible for any deliberately concealed latent flaw and can only rely on 'Voetstoots' if the defect was unknown to him. However, the burden of proof is on the purchaser if he alleges that the seller knows or ought to have known about the defect, and deliberately concealed it.

A buyer should ask the seller to supply all warranties and documentation relating to repairs and maintenance on transfer of the property.

Depending on the circumstances, the buyer can cancel the contract and/or claim repayment of a portion of the purchase price when a latent defect is present, although this process must be followed legally and with the consent of both the buyer and the seller. By law a buyer cannot simply obtain a quotation for the repair or replacement of a default, and deduct the cost thereof from the purchase price and tender a lesser amount (or reduce his deposit). He may not refuse to pay occupational rental or any portion thereof unless the defective article seriously restricts occupation of the property (which must be concluded legally), and he cannot repudiate or cancel the sale contract on his own accord.

Any new defects occurring after the sale of the property but prior to registration of transfer will be for the responsibility of the seller, unless caused by the buyer during occupation.

To protect yourself, as the purchaser it may be worth having a property inspection company inspect the property thoroughly. The cost of the inspection will be for the purchasers account.


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